Derry City Council v The Information Commissioner Appeal No. EA/2006/0014

This case concerned a request for information by a Belfast newspaper for details of Derry City Council's agreement with Ryanair from 1999 regarding the use of Derry Airport. Specifically requested was information on how much Ryanair pay Derry City Council for use of the facility.

The Council initially refused to supply the information requested, but subsequently provided some details of their agreement with the airline. However, it redacted the sections on 'Airport Charges', 'Ground Handling Charges' and 'Marketing Support', referred to as the "Ryanair Financial Information". The journalist complained to the Information Commissioner.

The Commissioner upheld the complaint and ordered the Council to release all the information requested. The Council then appealed to the Information Tribunal arguing (primarily) that the exemptions in sections 41 and 43 of the Act applied and that they were correct in withholding the information.

In relation to section 43, which allows non-disclosure of information to prevent the prejudice of commercial interests, the Council argued that release of the Ryanair Financial Information would weaken their bargaining position with other airlines and assist other airports in pitching to Ryanair. They also argued that it could damage the reputation of the airport. The first two arguments were accepted as being significant enough to compromise the Council, and that they would be prejudiced by the release of the information.

In considering the section 41 exemption, which allows information to be withheld under the Act where it has been provided to a public authority in circumstances of confidentiality, the Appeal had to consider whether the information was received by the Council from another party and in what context. In this case, the Tribunal concluded that the information concerned, being the agreement between the Council and Ryanair, had not been passed to the Council but had been generated by the Council and Ryanair jointly. Consequently, the Tribunal therefore held that the first leg of the section 41 exemption failed. The Tribunal also concluded that there was no evidence to show that the information was accorded any degree of confidentiality by either party at the time it was entered into, and so the second leg of section 41 was also unsuccessful. In reaching their conclusions under the legislation, the tribunal recognised that their findings in relation to the first leg had significant implications as it would mean that no contract entered into with a public authority could be withheld under the section 41 exemption, regardless of any confidentiality provisions stipulated in the contract. Information passed under such a contract may, however, fall within that exemption.

The Appeal went on to consider the public interest test as applied to both section 41 and 43. The section 43 exemption being subject to the public interest test and the section 41 exemption being subject to a public interest exception in line with the common law of confidentiality. The public interest test requires consideration of whether the public interest in maintaining the exemption outweighed the public interest in disclosing the information, and whether there would be potential harm done if the public was not given access to this information. There were several factors in favour of disclosure including facilitating accountability and transparency of public authorities for their decisions and in their spending of public money. It would also promote the understanding of individuals of the decisions made by public authorities affecting their lives, and encourage public debate over an item of publicly funded infrastructure.

The Council argued that the release of the information would not benefit public debate, and would certainly not outweigh the commercial risks inherent in doing so, and in fact that by releasing the information, the taxpayers could cause further losses at the airport and cost the taxpayer more. They had also argued that release would be a breach of the confidential contract they held with Ryanair, which was still in effect at the time of the Tribunal.

The Appeal decided that any damage to the Council did not outweigh the benefits of disclosure, particularly considering the period of time that had lapsed between the agreement, which had never formally been signed, containing the information coming into effect and the FOI Request being made, and consequently ordered the information to be disclosed.

Ultimately this case is significant for it's finding that agreements entered into with public authorities cannot be considered to be subject to an obligation of confidence under the terms of the Act. This decision will clearly have implications for the content of such agreements in the future.